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60-SecondsThis column has been a popular read in the pages of user group newsletters for more than a dozen years. For some background, read our 100th Issue.Top Stories* Spam Traps* Safe Computing * NO Dot-Docs * Get ripped off! * Your Press Release * The Kittridge Story 
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#174.2 follow up to MGM vs. Grokster, October, 2005 Shortly after publishing 60-Second Window #174, "MGM vs. Grokster: what does it mean?" I invited readers to post their comments. There were many, many who responded immediately and they continue to trickle in. Several of the responses were very thoughtful and I requested clarification and rebuttal. Since the comments have slowed to a bare trickle, I've had time, now, to read them all and reflect on the issue. I've chosen a select few to publish as follow-up because of the value of their views: Encouraging vs. NegligentK.B. writes:
Well done. Points well taken, though there are legitimate arguments
that counter the point on the tobacco industry since it However, all manufacturers and service providers (not just ISPs, but lawyers, doctors, accountants and others who provide services to the public) should be equally concerned about the issue. Should the automaker be sued because a criminal used one of its vehicles to flee the scene of a crime? The analogies could go on and on -- baseball bats, steam irons, garden implements. As an editor myself for many years, the one thing I suggest is that you insert a paragraph explaining the difference between "substantially encouraging" behavior and "negligent" behavior. For example, in some cases involving alcohol consumption, the basis for the decision was not that the bartender "substantially encouraged" the consumption of alcohol, but that he was "negligent" in failing to recognize that the customer had "had enough" and failed to stop serving him. It is logical to penalize a person/company for negligence, but not for providing a legitimate product that is deliberately used (or misused) by a person in the commission of a crime. Fred Replies: Excellent points. The original referenced article referred to the Grokster case to speculate on further ramifications of that decision. I took the opportunity to speculate that if this court decision establishes a "secondary liability" then could it not then be put to use against spam and online crime. Your bartender argument hits the nail on the head. Yes, there is a difference: It is NOT that the ISP "substantially encouraged" the online criminals to commit crimes, but that they are "negligent" in failing to recognize that their system, servers, hardware, etc., was being utilized in the commission of crimes. Next, H.H. writes to consider if Liability is established through Intent? You can comment on this or provide a different slant to the story by sending an email. Thanks for reading...
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